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Memorandum to the Joint Select Committee on the Draft Mental Health Bill

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(November 2004)

1. This memorandum is submitted in response to the Committee's call for evidence, dated 16 September 2004, on the draft Mental Health Bill.

2. The Council on Tribunals was set up by the Tribunals and Inquiries Act 1958 and now operates under the Tribunals and Inquiries Act 1992. The Council's main statutory function is to keep under review the constitution and working of the tribunals under its supervision and, from time to time, to report on them. These include the Mental Health Review Tribunals (MHRTs), constituted under section 65 of the Mental Health Act 1983.

3. The Council must be consulted before procedural rules are made for any tribunal under its supervision. The Council must make an Annual Report to the Lord Chancellor and the Scottish Ministers, which is laid before Parliament and the Scottish Parliament. Over the past 10 years, the Council has paid particular attention to the operation of MHRTs and the proposals for reform of the Mental Health Act, and has detailed its views and concerns extensively in its Annual Reports (in particular 1994/95, pp.31-35; 1995/96, pp.8-12; 1996/97, pp.29-31; 1997/98, pp.38-40; 1998/99, pp.37-39; 1999/2000, pp.15-18; 2000/01, pp.17-18; 2001/02, pp.22-24; 2002/03, pp.20-21). The Council will be pleased to supply extracts if desired.

4. In June 2000 the Council also published a Special Report on the operation of MHRTs (a copy of which is enclosed) to supplement its response to the Government's consultation on Reform of the Mental Health Act 1983. The key recommendations made in the Report included:

The new Tribunal to replace the Mental Health Review Tribunals should be headed by a national President, appointed by the Lord Chancellor;
Every tribunal hearing should be properly supported by a tribunal clerk;
Proper planning and management information systems should be put in place for the new Tribunal;
There should be a robust and comprehensive training policy for all tribunal Chairmen and members;
Good quality legally-aided representation at hearings should be more widely available to mental health patients;
The need for a review of tribunal accommodation, with a view to securing greater consistency and an improvement in standards.

5. The Council recognises that some progress has been made since the publication of its report, for example in the appointment of a lead Liaison Judge for the MHRT and improved arrangements for training. However, the Council remains concerned that the deficiencies in the current system, particularly in respect of resources and administration, should not be carried forward to the new system.

6. In the paragraphs below, the Council comments on some of the matters to which the Committee is paying particular regard, focusing on those most pertinent to the Council's remit.

The extent to which the draft Mental Health Bill is rooted in a set of unambiguous basic principles and whether these principles are appropriate and desirable.

7. The Council has some concerns that the guiding principles which will govern the operation of the new Act and guide its interpretation will be contained in the Code of Practice, rather than clearly specified within the legislation itself (apart from the general aims of the principles described in clause 1(3)). Until the Code is published, it is difficult to comment on whether the principles are unambiguous, appropriate or desirable. Some ambiguity will necessarily arise from clause 1(4) which allows the general principles to be disapplied in certain (as yet, unspecified) circumstances. Since the Code of Practice will not bind the Mental Health Tribunal, it would greatly assist the Tribunal in carrying out its judicial functions under the Act if a clear statement of the guiding principles were specified in the legislation itself.

The extent to which the definition of Mental Disorder is appropriate and unambiguous. Whether the conditions for treatment and care under compulsion are sufficiently stringent. Whether the provisions for assessment and treatment in the Community are adequate and sufficient.

8. The Council expressed concern that the relevant conditions for compulsion in the last version of the Bill were so broadly drawn as to make it difficult for the Tribunals, in exercising their decision making function, to discharge patients from compulsory powers. Whilst the Council notes that some aspects of the relevant conditions have been tightened up, there is still concern over the broad scope of some of the conditions and the degree of complexity that remains. In particular, the following terms remain open to very wide interpretation:

the "nature or degree [of mental disorder] as to warrant the provision of medical treatment" since this is no longer qualified by the need for detention in hospital, simply by the provision of medical treatment "under the supervision of an approved clinician" (clause 2(7)); and the defining characteristics of an approved clinician are left unspecified;
"for the protection of other persons" protection from what? No boundaries are specified, so even protection from a minor nuisance could be included;
"that medical treatment is available..." the definition of medical treatment contained in clause 2(7) is extremely broad.

9. In cases where the Tribunal makes a decision that the relevant conditions for compulsion apply, it will also have to decide whether the patient should be treated as a resident or non-resident patient (i.e. detained in hospital or treated in the community). The Council is concerned that the Bill contains no legal criteria to guide the Tribunal in making such a decision. The Council is also concerned at the breadth of the power contained in, for example, clause 46(7), enabling the tribunal to attach a condition to an order relating to a non-resident patient requiring the patient not to "engage in specified conduct".

Whether there are any important omissions in the Bill.

10. Section 72(2) of the Mental Health Act 1983 gives a Mental Health Review Tribunal discretion to discharge certain patients, even where it may not be satisfied that either of the mandatory conditions for discharge is met. This discretionary power is a helpful and important safeguard, which is absent from the current draft Bill. This is extremely regrettable, particularly in the light of the Council's continuing concerns over the complexity of the relevant conditions in the draft Bill. The extent to which the proposed institutional framework is appropriate and sufficient for the enforcement of measures contained in the Bill.

11. The Council's key interest lies in the appeal mechanisms and the proposal for a new two-tier tribunal system. The Council is keen to see the new tribunal smoothly and efficiently introduced. The Bill as currently drafted will, however, impose a significant workload on the new tribunal which will threaten its ability to perform at an appropriate standard unless additional resources are made available.

12. As regards the proposal for the composition of the new Mental Health Tribunal, the Council agreed that there was a good case for providing for greater flexibility in the composition of the tribunal, and particularly to enable a single person tribunal to deal with specific, well-defined interim or procedural categories of issue. However, the Council would expect that any substantive issue concerning the use of compulsory powers would always require a three person tribunal. Moreover, the criteria for the composition of tribunal should always be sufficiently well-defined in secondary legislation and any discretion in the composition of Tribunals should lie with the President.

13. In addition, it is apparent that the new Mental Health Tribunals will be much more involved in the approval of treatment plans than are the current MHRTs. However, it is not entirely clear what power the new Tribunal will have to amend care plans in the face of objections from the clinical supervisor, or what the position would be where agreement cannot be reached between the tribunal and the clinical supervisor. This could present particular difficulties in the case of a resident patient whom the tribunal considers could more appropriately be treated in the community.

14. The Council notes the introduction of a duty on the tribunal to make a deferral order (in clause 63) but is concerned by the nature of the decision required of the tribunal by clause 63(2)(b). In deciding to make a discharge order the tribunal will have already satisfied itself that the conditions for compulsion are no longer met, yet the duty to defer discharge requires the tribunal to predict whether the relevant conditions are likely to be met within 8 weeks if the patient is not provided with post-discharge services. This would seem an extremely difficult task.

15. So far as the new Mental Health Appeal Tribunal (MHAT) is concerned, the Council understands that some members of the MHAT panel may also sit as a member of an MHT and is content, subject to the caveat that no MHAT member may hear a case in which he or she was involved at the first tier.

The extent to which the safeguards against abuse are adequate. Whether the safeguards in respect of particularly vulnerable groups, for example, children, are sufficient. Whether there are enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery.

16. See the comments in paragraph 18 below in relation to the interface with the Mental Capacity Bill and the need for adequate safeguards for compliant incapacitated patients. See also the comments in paragraphs 8, 11 and 20 concerning the tribunal's workload and the nature of the conditions contained in clause 9. The value of the tribunal as a safeguard will be closely related to the conditions it is required to interpret and to the adequacy of the resources made available to it.

The extent to which the balance struck between what has been included on the face of the draft Bill and what goes into Regulations and the Code of Practice is right.

17. See the comments in paragraphs 7 and 12 above.

The extent to which the draft Mental Health Bill is adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004).

18. The Council is aware that a recent decision of the European Court of Human Rights (H.L. v United Kingdom, Appl No. 45508/99) has thrown into some doubt the balance between the draft Mental Health Bill and the Mental Capacity Bill. In particular, it is uncertain whether the provisions of the latter contain sufficient safeguards for the detention of patients lacking capacity to consent in order to ensure compliance with ECHR Article 5. The Council is concerned that as currently drafted, neither Bill provides access to the Mental Health Tribunal for anyone to challenge detention decisions on behalf of compliant incapacitated patients, nor indeed on behalf of those non-compliant incapacitated patients who do not meet the conditions for compulsion under clause 9.

The extent to which the draft Bill is in full compliance with the Human Rights Act.

19. In addition to the comments in paragraph 18 above, the Council has some concern that the continued denial of power for the tribunal to order leave and transfer in the case of restricted patients could lead to a breach of article 5(4).

What are the likely human and financial resource implications of the draft Bill. What will be the effect on the roles of the professionals? The extent to which the Government has analysed the effect of the Bill adequately, and whether sufficient resources will be available to cover any costs arising from implementation of the Bill.

20. The Bill's Regulatory Impact Assessment (RIA) indicates the need for an additional 80 legal members and 30 lay members for the new Tribunals. The Council believes this to be an under-estimation of need in the light of the significant number of additional hearings that are likely to arise under the new system, and the creation of a new appellate tier. In addition, it is not easy from the RIA to apportion the additional numbers of the clinicians to the Tribunals as opposed to those that will be needed within mental health services.